Citation NR: 9617580
Decision Date: 06/28/96 Archive Date: 07/08/96
DOCKET NO. 94-23 605 ) DATE
)
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: New Hampshire State Veterans
Council
ATTORNEY FOR THE BOARD
S. Westfall, Counsel
INTRODUCTION
The veteran served on active duty from November 1942 to
September 1945.
This appeal arises from a March 1994 rating action of the
Manchester, New Hampshire, Regional Office (RO), which denied
service connection for the cause of the veteran's death.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the veteran's death resulted from
his service-connected psychoneurotic disability since he had
seizures prior to death which she feels were attributable to
the psychiatric condition. The claimant also opines that the
veteran's nervous disorder and service-connected varicose
veins adversely affected his heart. Additionally, she feels
that Dr. Yurcheshen misdiagnosed chronic obstructive
pulmonary disease; that the veteran did not have a lung
disorder; and that his service-connected nervous disability
adversely affected all his vital organs, resulting in his
death.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for the cause of the veteran's death is
well grounded.
FINDING OF FACT
The claim for service connection for the cause of the
veteran's death is not supported by cognizable evidence
showing that the claim is plausible or capable of
substantiation.
CONCLUSION OF LAW
The appellant's claim of entitlement to service connection
for the cause of the veteran's death is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
According to the provisions of 38 U.S.C.A. § 5107(a), the
appellant has the burden of submitting evidence sufficient to
justify a belief by a fair and impartial individual that a
claim is well grounded. A claim is well grounded when it is
plausible. In Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990),
the United States Court of Veterans Appeals held that a
plausible claim is one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive, but only plausible to satisfy the initial burden
of 38 U.S.C.A. § 5107(a). See Tirpak v. Derwinski,
2 Vet.App. 609, 611 (1992). In cases in which the
determinative issue is one involving medical causation,
competent medical evidence is required to establish a
well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93
(1993). Here, following a review of all of the evidence, the
Board finds that this claim is not substantiated by competent
evidence, and as such, it fails to meet the threshold
requirement. The Board concludes that this claim for service
connection for the cause of the veteran's death is not well
grounded.
The death certificate indicates that the veteran died in
January 1994. The immediate cause of death was pulmonary
decompensation of some 48 hours' duration due to chronic
obstructive pulmonary disease of years' duration. Other
significant conditions included diabetes mellitus and
atherosclerotic coronary vascular disease. At the time of
his death, service connection was in effect for an anxiety
disorder, evaluated at 30 percent disabling, and
postoperative residuals of varicose veins, evaluated as
10 percent disabling.
The service medical records do not reflect any reference to
abnormalities or disorders involving the cardiovascular
system, the endocrine system (diabetes mellitus), or the
respiratory system. Indeed, all clinical findings pertaining
to the heart, lungs, and endocrine system were reported as
normal throughout service, which included numerous periods of
hospitalizations for unrelated conditions.
Subsequent to service separation, a cerebral aneurysm with an
associated seizure disorder was diagnosed in 1977.
Congestive heart failure and a history of diabetes mellitus
were first referred to in October 1990. An anterior wall
myocardial infarction was diagnosed in February 1991. During
hospitalization in May 1991, the final diagnoses included
congestive heart failure due to atherosclerotic
cardiomyopathy and a history of a seizure disorder with a
ventricular shunt and cerebral aneurysm. Chronic obstructive
pulmonary disease (COPD) with respiratory decompensation
secondary to bronchitis was diagnosed during private
hospitalization in September 1991.
Thereafter, until the veteran's terminal hospitalization, he
was seen on numerous occasions at a private emergency room
and hospitalized on multiple occasions at both a VA medical
center and a private hospital for primary treatment of his
cardiovascular and respiratory disorders. The terminal
hospital summary clearly indicates that the cause of death
was terminal chronic obstructive pulmonary disease with chest
pain and dyspnea secondary to that disorder. Also diagnosed
were atherosclerotic coronary vascular disease with previous
myocardial infarctions, status post intercerebral shunt
placement, cerebral hemorrhage, and diabetes mellitus.
It is significant that these records do not reflect any
complaints of, findings pertaining to, or treatment for
either his service-connected anxiety disability or
service-connected varicose veins.
The appellant maintains that the veteran's service-connected
anxiety disorder was primarily responsible for his death and
that chronic obstructive pulmonary disease was misdiagnosed.
She asserts the veteran did not have a lung problem.
However, the clinical evidence does not support these
premises. Indeed, there is not a scintilla of evidence to
substantiate the claimant's allegations. A statement from
the veteran's treating physician, Dr. W. J. Yurcheshen, dated
in May 1994, said that he had cared for the veteran from
April 1989 until his death in January 1994; that at the time
of the initial examination, the veteran gave a history of a
seizure disorder due to a previous cerebral aneurysm; and
that he had never observed the veteran having a seizure. It
was acknowledged that the veteran's wife said that she had
observed such activity in the weeks prior to death.
A statement from a registered nurse received in May 1994
indicated that she had seen the veteran for nursing, physical
therapy, and home health aid assistance.
In Caluza v. Brown, 7 Vet.App. 498, 506 (1995), it was
specifically stated that, in order for a claim to be well
grounded, there must be competent evidence of current
disability (a medical diagnosis), evidence of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and evidence of a nexus between the inservice
injury or disease and the current disability (medical
evidence).
The appellant's claim fails to meet these required elements.
As pointed out above, diabetes mellitus, chronic obstructive
pulmonary disease or any respiratory disorder, and any
cardiovascular disorder are not shown to have been present
during service and, indeed, were not demonstrated until many
years following service separation. Additionally, there is
no evidence of a nexus between service and the chronic
disabilities with which the veteran suffered, particularly,
COPD, the disability which precipitated his death. Further,
the claimant is not shown to be trained in the field of
medicine and, as such, her opinion as to the etiology of any
disease or a disease process resulting in death does not
constitute competent evidence. Espiritu v. Derwinski,
2 Vet.App. 492, 494 (1992). The claimant has not met the
initial burden of presenting evidence of a well-grounded
claim pertaining to service connection for the cause of the
veteran's death.
In reaching this determination, the Board recognizes that
this issue is being disposed of in a manner different from
that utilized by the RO. The Board has, therefore,
considered whether the claimant has been given adequate
notice to respond, and if not, whether she has been
prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993).
In light of the implausibility of this claim and the
appellant's failure to meet the initial burden in the
adjudication process, the Board concludes that she has not
been prejudiced by this decision. This means that the Board
is not denying service connection for the cause of the
veteran's death, but merely finding that the claimant has
failed to meet her burden of presenting a claim capable of
substantiation. The Board views its discussion as sufficient
to inform the appellant of the elements necessary to complete
her application for service connection for the cause of the
veteran's death. Robinette v. Brown, 8 Vet.App. 69, 77-78
(1995).
ORDER
The issue of entitlement to service connection for the cause
of the veteran's death is not well grounded, and this claim
is denied.
ALBERT D. TUTERA
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991& Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date which appears on
the face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.